Did the President, as he claimed, lose a battle but win a war in his attempt to pack the Supreme Court? Historical perspective suggests another answer

Thus the fight went on, despite a searing report from the Senate Judiciary Committee. Though it was largely the work of Democratic senators, that report characterized the court bill as “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” At last the Administration sought to compromise, but the Senate had the bit in its teeth. No bill that retained any hint of court-packing was thereafter acceptable.

The unfortunate Joe Robinson was increasingly torn between his distrust of the bill and his ambition to become a justice of the Supreme Court. Outwardly, he fought with desperation against the doom that was closing in on the bill. Secretly, he kept its foes informed about the wavering of senators in his ranks. On July 14, 1937, his sorely troubled heart failed under the strain; his death knell also signaled the end for the judiciary bill. Shortly after Senator Robinson’s funeral the Senate formally buried the infamous measure in the usual way—by recommitting it to the Judiciary Committee.

Even this did not bring down the final curtain. F. D. R. struck back by naming as a successor to Justice Van Devanter one of his most ardent supporters in the court fight—a man who would be anathema to his foes in the Senate and who would nevertheless be in a position to command confirmation—Senator Hugo L. Black of Alabama. Regardless of what may be said of Justice Black’s subsequent career on the bench, the revenge motive appears to have been a major factor in Roosevelt’s nomination of him. If the President found the Senate’s discomfiture sweet, however, his satisfaction was short-lived. Shortly after his confirmation, disclosure that Black had once been a member of the Ku Klux Klan brought a fresh public clamor and intensified the bitterness of the whole affair.

Can this strange chapter in our history be regarded as an essential part of the process by which the Constitution has been modernized? Was President Roosevelt right in asserting, long after the fight was over, that he had lost a battle and won a war? Since 1937, undoubtedly, the Supreme Court has in many instances taken a broader view of the powers of Congress than it did before. But this came about without any change in the structure of the court, by an evolutionary process as different from court-packing as is an election from a coup d’état .

The chief reason why judicial decisions invalidating acts of Congress began to subside after 1937 was that Congress thereafter exercised greater care in casting its statutes. The reckless draftsmanship of the emergency period was eliminated. Sweeping delegations of power were avoided, and the new regulatory measures were based on the commerce clause instead of on the taxing power. Having fought a terrific battle to save the court from domination by the executive, Congress was especially eager to avoid the type of legislation that might precipitate another showdown.

Some individual judges made changes in their conclusions, as in the minimum-wage cases. But these were less extensive than is generally supposed, and in no instance can they be directly attributed to the court-enlargement plan. Chief Justice Hughes denied emphatically that the court bill had any bearing whatever on any of his decisions, and in no case did he urge his brethren to shade their views to save the court. The “switch-in-time-saves-nine” myth was never anything more than a journalistic wisecrack.

More important than anything else in the evolution of constitutional doctrine since 1937 has been the changed personnel of the Supreme Court. Before F. D. R.’s death in 1945 he had named seven of the nine members of the court and had elevated Stone to the chief justiceship. Though the new justices became involved in turbulent controversies among themselves, they went much further than the Hughes court had done in amplifying the commerce clause and other federal powers. In general the country has accepted and welcomed these new interpretations. But what would have been its attitude and what would now be the standing of the court before the bar of public opinion if its membership had been expanded to fifteen in order to bring about decisions favored by the White House?

If Roosevelt had sponsored a reasonable retirement bill for members of the Supreme Court in 1937, the evolutionary process would have been hastened and this entire sorry chapter in our history could have been avoided. The chief difficulty seems to have been that after his triumphal re-election in 1936 the President was riding too high to deal with the court with the moderation and restraint that should guide the relations of one co-ordinate branch of government to another. He chose a method which might indeed have lifted restraints from Congress and the Administration—there was never much doubt about that—but it would also have imperiled our constitutional system, the central genius of which is its system of checks and balances.